Citation Nr: 0105516
Decision Date: 02/23/01 Archive Date: 03/02/01
DOCKET NO. 99-22 447 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether the veteran has submitted new and material evidence
to reopen a claim of entitlement to service connection for a
low back condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The veteran served on active duty from June 1962 to June
1992. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a January 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
Although the veteran requested a Travel Board hearing in
November 1999, he subsequently withdrew his request for a
hearing in correspondence received in December 1999.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained.
2. Service connection for low back pain and left sciatica
was denied in an October 1993 rating decision; the veteran
subsequently submitted further evidence and requested the
decision be reconsidered.
3. An unappealed June 1994 rating decision denied service
connection for sciatica.
4. The evidence received since the June 1994 rating decision
consists of evidence that bears directly or substantially
upon the specific matter under consideration and is so
significant that it must be considered to decide fairly the
merits of the claim.
CONCLUSIONS OF LAW
1. The October 1993 and June 1994 rating decisions are final.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d),
20.200, 20.302, 20.1103 (2000).
2. New and material evidence has been submitted or secured
to reopen the
veteran's claim of entitlement to service connection for a
low back condition. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that that he has a chronic low back
condition that was incurred during his service.
During the pendency of the veteran's appeal but after the
case was forwarded to the Board, the Veterans Claims
Assistance of Act of 2000 became law. This liberalizing
legislation is applicable to the appellant's claim. See
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). It
essentially eliminates the requirement that a claimant submit
evidence of a well-grounded claim, and provides that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
of which portion, if any, of the evidence is to be provided
by the claimant and which part, if any, VA will attempt to
obtain on behalf of the claimant. After reviewing the
record, the Board is satisfied that all relevant facts have
been properly developed with respect to this issue, that VA
has given the veteran adequate notice regarding the evidence
necessary to substantiate his claim and that no further
assistance to the veteran is required to comply with the duty
to assist mandated by statute. 38 U.S.C.A. § 5107 ; Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).
Factual Background
In an October 1993 decision, the RO denied service connection
for low back pain and left sciatica on the basis that there
was no current condition. In November 1993, the veteran was
advised of the RO's decision and his right to submit
additional evidence on the matter. In correspondence
received in December 1993, he submitted further treatment
records and requested the RO reconsider his claim. A June
1994 rating decision denied service connection for sciatica.
The veteran was advised of the RO's decision that same month
and of his appellate rights. He did not appeal this
decision.
The evidence of record at the time of the June 1994 decision
included the veteran's service medical records. In November
1974, the veteran complained of low back pain after lifting a
child. In May 1980, he complained of lower back pain with
muscle spasm and was diagnosed with low back syndrome. He
was treated for lumbar strain in January and September 1983.
An October 1983 treatment record indicated that X-ray studies
of the veteran's lumbar spine were negative, and the
assessment was myofascial syndrome. Later that month he was
treated for resolving sciatica. Lumbar strain was noted in
July 1987; musculoskeletal low back pain in May 1988 and
mechanical low back pain in August 1989. He was treated for
low back pain in January 1990, January and July 1991. His
January 1992 medical history included a history of chronic
low back pain of unknown etiology since 1979. He was
prescribed pain medications for recurrent low back pain that
same month and in June 1992.
The evidence of record also included a January 1993 treatment
record from the Eglin Air Force Base medical group. The
veteran sought a change in medication and gave a history of
arthritis and low back pain with periodic spasms. He also
gave a history of a herniated lumbar disc. A history of low
back pain with spasm and a questionable old herniated nucleus
pulposus (HNP) were the impressions.
During a September 1993 VA general medical examination, the
veteran's history of recurrent low back pain with radiation
into the legs was noted. A neurological examination revealed
no evidence of sciatica at the time. The diagnosis was a
history of recurrent low back pain and sciatica.
A January 1994 progress note from David M. Campbell, M.D.,
noted the veteran's history of recurrent low back pain and
noted that he injured his back the night before while loading
his truck. The diagnosis was lumbosacral strain.
In March 1998, the veteran attempted to reopen his claim for
service connection for a low back condition. Evidence
submitted subsequent to the June 1994 rating decision
includes June 1994 X-ray studies and a magnetic resonance
imaging (MRI) scan of the veteran's lumbar spine, from Sacred
Heart Hospital. The studies revealed relative spinal
stenosis with central disc protrusion and small HNP at L2/3
and L4/5 levels and with a mild disc bulge at the L5/S1
vertebral level.
During a June 1994 evaluation of the veteran, A. B. Sisco,
M.D., noted the veteran's long history of episodic low back
pain. The veteran had complaints of low back pain with vague
radiation of numbness in the buttocks and thighs and the
recent MRI findings. Dr. Sisco, while indicating that it was
problematic to determine the exact etiology of the veteran's
prior episodes of low back pain, opined that they very well
could have been a result of lumbar disc disease.
Also added to the record is a November 1994 Elgin Air Force
Base medical group admission record. In pertinent part, this
evidence shows that the veteran had injured his back and that
it was being followed up by Dr. Kriefels with workman's
compensation.
VA treatment records dating from April 1997 to August 1998,
include notations of continued complaints of low back pain.
May 1997 MRI studies showed spinal stenosis at the L4/L5
vertebral level. In March 1998 the veteran underwent a
complete bilateral lumbar laminectomy at L4 and L5 with a
L4/5 discectomy.
In June 1998, the veteran submitted statements from his wife
and several friends regarding their personal knowledge of his
back disability. His wife stated that she had been married
to the veteran for 16 years and had witnessed his change from
a physically very active person to someone who barely get out
of his bed in the mornings due to back pain and leg numbness.
She described his current condition in detail. The veteran's
friends had all known him for various periods of time, some
as early as 1989 and others as late as 1996. They all stated
that they were aware of his back problem and that it had
progressively worsened. One friend, had known the veteran
since 1987 and served with him. This friend remembered
several episodes of low back pain in service and since
service.
Analysis
As stated above, the RO originally denied service connection
for low back pain with sciatica in October 1993 and again
denied service connection for sciatica in a June 1994 rating
decision. Since the veteran did not appeal these rating
decisions, they are final. 38 U.S.C.A. § 7105; 38 C.F.R.
§§ 3.150(d), 20.200, 20.302, 20.1103. The claim may not be
reopened and allowed unless new and material evidence is
presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
However, if new and material evidence is presented or secured
with respect to a
claim that has been disallowed, VA must reopen the claim and
review its former
disposition. 38 U.S.C.A. § 5108.
The Board must first determine whether the evidence is new
and material. New and material evidence means evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration which is neither cumulative nor redundant and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). See Hodge v. West, 155 F.3d. 1356 (Fed. Cir.
1998). Evidence that is solely cumulative or repetitious in
character will not serve as a basis for reconsideration of a
previous decision. Moreover, Hodge stressed that under the
regulation new evidence that was not likely to convince the
Board to alter its previous decision could be material if
that evidence provided "a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it will not eventually convince the
Board to alter its rating decision." Id. The Federal
Circuit noted that "any interpretive doubt must be resolved
in the veteran's favor" and that "the regulation imposes a
lower burden to reopen than the Colvin test." Hodge at 1361,
n. 1. In determining whether evidence is "new and
material," the credibility of the new evidence must be
presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992);
but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus
does not require the Secretary to consider the patently
incredible to be credible").
The Board finds that Dr. Sisco's June 1994 opinion that the
veteran's history of low back pain could have been episodes
of lumbar disc disease, together with postservice evidence of
disc disease, is so significant that it must be considered in
order to fairly decide the merits of the claim. The
additional records document that the veteran was diagnosed
with disc disease in the lumbar spine after service and
underwent a laminectomy and discecetomy. Therefore, there is
new and material evidence to reopen the claim. 38 C.F.R. §
3.156(a). Accordingly, the claim is reopened. 38 U.S.C.A.
§ 5108.
ORDER
New and material evidence has been submitted or secured to
reopen the veteran's claim of entitlement to service
connection for a low back condition.
REMAND
The Veterans Claims Assistance Act of 2000 also indicates
that VA shall provide a medical examination or opinion when
necessary to make a decision in a claim. Examinations are
necessary where the evidence of record contains competent
evidence that the claimant has a current disability and
indicates that the disability may be associated with the
claimant's active service but does not contain sufficient
medical evidence for VA to make a decision on the claim.
The veteran contends that his current low back condition was
first incurred during service. Service medical records show
that he was treated for intermittent and episodic low back
strains, low back pain and sciatica. The veteran's private
physician has opined that the veteran's history of episodic
low back pain may have been etiologically linked to his
currently diagnosed lumbar disc disease. However, other
evidence of record indicates an intercurrent injury in
January 1994 and that the veteran may have had a workman's
compensation claim associated with a back injury in November
1994. Therefore, the Board finds that there is insufficient
medical evidence of record for VA to make a decision on the
claim.
The claims folder contains no copies of any workman's
compensation claim or decision or Dr. Keifels' treatment
records. The Board is of the opinion that these relevant
records should be obtained and associated with the veteran's
claims file.
In light of the foregoing circumstances, the veteran's claim
for service connection for a low back condition is REMANDED
to the RO for the following actions:
1. The RO should contact the veteran and
request that he identify specific names,
addresses and approximate dates of
treatment for all health care providers,
VA or private, who may possess additional
records pertinent to his claim for
service connection for low back
disability. In particular, the address
of Dr. Kriefels should be requested. In
addition, the veteran should be requested
to submit any workmen's compensation
records he may possess pertaining to his
back. If the veteran does not have these
records, the RO should obtain the names
and addresses of any agency or
organization that may have possession of
the records. Then with any necessary
authorization from the veteran, the RO
should attempt to obtain copies of all
treatment and workman's compensation
records identified by the veteran, which
have not been previously secured. These
should include VA medical records from VA
medical facilities in Biloxi, Mississippi
and Pensacola Florida. Any records
received should be associated with the
claims folder.
2. If the RO is unsuccessful in
obtaining any medical or workman's
compensation records identified by the
veteran, it should inform the veteran of
this and request him to provide a copy of
the outstanding records.
3. After the above development has been
completed, but in any event, the RO
should schedule the veteran for a VA
orthopedic examination. The claims
folder and a separate copy of this remand
must be made available to the orthopedist
for review prior to the examination. All
indicated studies should be performed.
The examiner must indicate whether the
claims folder was reviewed. The examiner
is requested to express an opinion as to
the etiology of the veteran's current low
back condition, if present, and whether
it is as likely as not that it is a
result of his service or any incident
therein. The veteran is hereby advised
that failure to report for a scheduled VA
examination without good cause shown may
have adverse effects on his claim.
5. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§
5102, 5103, 5103A, and 5107) are fully
complied with and satisfied. For further
guidance on the processing of this case
in light of the changes in the law, the
RO should refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered. Thereafter, the RO should
readjudicate the claim.
If the benefit sought on appeal remains denied, the appellant
and the appellant's representative, should be provided with a
supplemental statement of the case (SSOC). The SSOC must
contain notice of all relevant actions taken on the claim for
benefits, to include a summary of the evidence and applicable
law and regulations considered pertinent to the issues
currently on appeal. An appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals